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Sep 2018
21
September 21, 2018

ICE Cracks Down on Immigration Violators

Immigration and Customs Enforcement (ICE) has recently stepped up its efforts to enforce immigration laws in the workplace. From October 2017 through April 2018, ICE opened 5,792 worksite investigations/audits and made 594 criminal and 610 administrative arrests. These numbers dwarf ICE’s activities in the previous fiscal year, where ICE opened 45% fewer worksite investigations/audits and made nearly 50% fewer arrests. This trend is expected to continue through the remainder of the fiscal year, if not throughout the tenure of the current Trump administration.

Our state has seen its fair share of ICE enforcement activity and Michigan employers should be prepared for a potential audit with regard to their I-9 recordkeeping.

Employers must complete the I-9 within three business days of the employee’s hire date. The I-9 form requires an employer to verify that the employee has documentation proving the right to work in the United States. The employer can choose whether or not they want to keep copies of that documentation on record. If an employer chooses to do so, they must do so for all employees. The required documentation can vary depending on the employee’s immigration status. Also, for some non-citizens, the employer is required to re-verify the employee’s right to work if their employment authorization documents expire during their time as an employee. 

Employers are required to keep an I-9 form on file for all employees who are currently working and for one year after they cease employment. At a minimum, all I-9s are required to be kept for at least three years. These documentation requirements, coupled with the fact that I-9s must be kept on file even for employees who are no longer working, can make I-9 recordkeeping a demanding and complex process. 

When conducting an audit, ICE gen-erally gives the employer three days to produce all I-9 documentation for every current and former employee. ICE prohibits employers from changing insufficient I-9 records during this three-day period. If there are errors or discrepancies in the I-9 records, ICE has the ability to impose fines, the severity of which varies depending upon the nature and number of the I-9 violations found in the audit. Large employers with thousands of employees and hundreds of I-9 violations can find themselves facing seven-figure fines. But even smaller employers with only dozens of employees can find themselves facing fines in the $100,000 range if there are multiple errors in their I-9 documentation. The fines are appealable, but are generally only reduced slightly—if at all—through the appeal process. 

Employers should periodically review their I-9 practices to ensure that the proper documentation is on file for each employee. Additionally, HR personnel should be trained to understand what evidence is sufficient proof of an employee’s right to work in the United States. Remember, once ICE shows up at an employer’s door, it is too late to make changes to I-9 forms. Your employment attorney can assist you to determine if your I-9 practices are sufficient to withstand an ICE audit and can also assist in training HR personnel to properly maintain I-9 records. 

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